Busby v. Capital One, N.A.
759 F. Supp. 2d 81
D.D.C.2011Background
- Busby filed in the DC Superior Court on May 18, 2010 against Capital One and attorney Prensky.
- Plaintiff alleged DC-law tort claims related to a 1996 promissory note and deed of trust, including fraud and conversion.
- On June 9, 2010, the amended complaint added RICO claims under 18 U.S.C. § 1961 et seq.
- Capital One removed to federal court on June 17, 2010, asserting federal question and diversity jurisdiction.
- Plaintiff moved to remand and to add Chasen & Chasen as a defendant on July 16, 2010; motions ripe for decision.
- Court denied remand and denied without prejudice the joinder motion, addressing jurisdiction, notice, and consent issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is removal proper under federal jurisdiction? | Busby argues lack of jurisdiction and improper removal. | Defendants argue federal question (RICO) and supplemental, plus diversity. | Removal proper; federal question with supplemental jurisdiction. |
| Was notice of removal timely and proper? | Busby did not receive timely written notice. | Notice was mailed, e-mailed, and electronically served; written notice satisfied. | Notice satisfied; no remand required. |
| Did Prensky unambiguously consent to removal? | Prensky did not independently file consent; unclear unanimity. | Prensky signed the notice, unequivocally consenting to removal. | Unanimous and unambiguous consent found; removal valid. |
| Is joiner of Chasen & Chasen proper at this stage? | Plaintiff seeks to join; claims against Chasen & Chasen not in operative complaint. | Joinder requires an asserted right to relief; no pleaded claims against that entity. | Denied without prejudice; improper without proposed amendment. |
Key Cases Cited
- Lindsay v. Gov't Emps. Ins. Co., 448 F.3d 416 (D.C. Cir. 2006) (1367(a) mandates exercise of supplemental jurisdiction for related claims)
- Emrich v. Touche Ross & Co., 846 F.2d 1190 (9th Cir. 1988) (pendent or supplemental jurisdiction for related state claims when federal claims exist)
- City of Chicago v. Intl. College of Surgeons, 522 U.S. 156 (U.S. 1997) (basis of supplemental jurisdiction after removal)
- Pritchett v. Cottrell, 512 F.3d 1057 (8th Cir. 2008) (signed consent attached to another defendant's removal suffices for unanimity)
- Harper v. AutoAlliance, 392 F.3d 195 (6th Cir. 2004) (unanimity rule satisfied by concurrent consent)
- Calderon v. Pathmark Stores, Inc., 101 F.Supp.2d 246 (S.D.N.Y. 2000) (delay in notice not prejudicial when nonjurisdictional and short)
- Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (U.S. 1921) (burden to show jurisdiction rests with removing party)